In contractarian accounts of the formation of political society legitimate political authority stems from the consent of the governed. Such accounts make authority and obligation conventional. The contract marks a new beginning. Only then can one speak of legally defined particular guilts.

But what happens if a form guilt comes first, and is constitutive of the contract?

Such constitutive guilt may manifest itself in temporal or logical ambiguity over the key transition on which the rational myth of contractarian transformation depends. For Hobbes the contract that establishes the sovereign creates the possibility of justice and particular guilts. It produces order by leaving the violence of all against all behind. However, the impulse to general violence necessarily persists: Hobbes needs it to motivate the contract. It attests to a general guiltiness in human nature as Hobbes construes it.

Locke, side-stepping lapsarianism, posits natural law as persisting within political society, and then keeps having to supplement it with the artifice of a series of contractual moments: the compact that delegates legislative and then executive powers; the establishment of property; and then the implicit contract that transforms ‘natural’ property into storable money, thus making property the basis of a new kind of social order. Rousseau would later indict it as based on theft and fraud rather than right.

A constitutive guilt in the formation of the subject often informs the social contract. For Kant the subject as such is accorded philosophical and ethical significance at the cost of the particular individual. As particular, realised individuals we are to identify with the necessary and universal form of ethical reasoning, which is why the Kantian contract is hypothetical rather than historical. However, if the particular individual self is not so easily left behind and (like the Hobbesian impulse to violence) persists, it persists subject to an implicit accusation of failing to measure up to the selfless standards of the ethical subject. That failure is a form of constitutive guilt, whose disavowal underpins arbitrary designations of individual guilt within the polity.

The paper will propose re-readings of contractarian texts to reveal an occluded and foundational guilt. This constitutive guilt is not bloodlessly hypothetical. It can impinge, for example, in the occupation of supposedly vacant land and the consequent genocidal clearance or enslavement of the pre-existing population. Moments of founding violence that contractarian myth pushes back into a virtual past where they can be transcended by rational agreement often prove more real and traumatic than it is convenient to acknowledge, in ways that highlight the tension between the particular and realised individual and the abstract, universal subject.

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